Humphrey v WIXT News Ch. 9

2004 NYSlipOp 08408

November 19, 2004

Appellate Division, Fourth Department

John Jay Humphrey, Appellant, v WIXT News Ch. 9, Respondent.

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Appeal from an order of the Supreme Court, Onondaga County (William R. Roy, J.), entered December 9, 2003. The order denied plaintiff's motion for a default judgment and granted defendant's motion for an order compelling plaintiff to accept defendant's answer.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court did not abuse its discretion in denying plaintiff's motion for a default judgment and granting the motion of defendant for an order compelling plaintiff to accept its late answer (see CPLR 3012 [d]; Cleary v East Syracuse-Minoa Cent. School Dist., 248 AD2d 1005 [1998]; Better v Town of Schodack, 169 AD2d 965 [1991]; Goracy v Burns, Brooks & McNeil, 155 AD2d 256 [1989]). "Public policy favors the resolution of a case on the merits, and a court has broad discretion to grant relief from a pleading default if there is a showing of merit to the defense, a reasonable excuse for the delay and it appears that the delay did not prejudice the other party" (Cleary, 248 AD2d at 1005; see Lichtman v Sears, Roebuck & Co., 236 AD2d 373 [1997]). The affidavit submitted by defendant establishes that the default was not willful and further establishes a meritorious defense (see Saunders v County of Washington, 255 AD2d 788, 790-791 [1998]). Moreover, plaintiff has suffered no demonstrable prejudice from the three-week delay (see Cleary, 248 AD2d at 1005). Present—Hurlbutt, J.P., Kehoe, Gorski, Martoche and Hayes, JJ.